FIFTH SECTION
DECISION
Application no. 34901/04
by Yuriy Vasylyovych DUMNYCH and 15 other applications
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 14 December 2010 as a Committee composed of:
Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above applications lodged on the dates specified in the table annexed below,
Having regard to the decision to apply the pilot-judgment procedure taken in the case of Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, ECHR 2009‑... (extracts)),
Having regard to the unilateral declaration submitted by the respondent Government on 2 August 2010 requesting the Court to strike the applications out of the list of cases, the applicants' replies to it and the Government's letter of 9 December 2010 amending the aforesaid declaration,
Having deliberated, decides as follows:
PROCEDURE
The applicants are Ukrainian nationals whose names and dates of birth are set out in the table annexed below. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
On the dates set out in the table annexed below the domestic courts held for the applicants and ordered the authorities to take certain measures or to pay various amounts to the applicants. These judgments became binding but the authorities delayed their enforcement.
COMPLAINTS
The applicants complained about the delayed enforcement of the judgments in their favour and, in certain cases, of assorted faults that allegedly accompanied the judicial or enforcement proceedings. Some of the applicants also raised other complaints.
THE LAW
The Court first considers that in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common legal background.
A. Complaints concerning lengthy non-enforcement of the judgments in the applicants' favour
Following the Yuriy Nikolayevich Ivanov v. Ukraine pilot judgment cited above, in a letter dated 2 August 2010, the Government informed the Court of their unilateral declaration, signed on 30 July 2010, with a view to resolving the issue raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government of Ukraine acknowledge the excessive duration of the enforcement of the applicants' judgments, included in the annex to this declaration.
The Government are ready to pay to the applicants the outstanding debts according to the judgements of the national authorities, as well as to pay the applicants ex gratia the sums in accordance with the annex to this declaration.
The Government therefore invite the Court to strike the applications out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court's list of cases, as referred to in Article 37 § 1 (c) of the Convention.
The sums ex gratia are to cover any pecuniary and non-pecuniary damage as well as costs and expenses and will be free of any taxes that may be applicable. They will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay these sums within the said three-month period, the Government undertake to pay simple interest on them from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the cases.”
A majority of the applicants disagreed with the terms of the Government's declaration on various grounds, considering most often that the compensation amounts offered by the Government were insufficient. Certain others failed to reply.
On 9 December 2010 the Government sent a letter expressing their intent to amend the above declaration and to include the provision that the ex gratia sums “be converted into the national currency of the respondent State at the rate applicable at the date of settlement” in order to be able to effect the payment.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine states:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.”
The Court also reiterates that in certain circumstances it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
The Court further reiterates that in its pilot judgment (Yuriy Nikolayevich Ivanov v. Ukraine, cited above) it required Ukraine to
“grant adequate and sufficient redress, within one year from the date on which the present judgment [became] final, to all applicants [...] whose complaints about the prolonged non-enforcement of domestic decisions [had] been communicated to the respondent Government.”
In the same judgment the Court also held that
“Proceedings in cases which [had] already been communicated to the Government under Rule 54 § 2 (b) of the Rules of Court, but in which the Court [had] not yet decided on the merits, [would] be adjourned for [one year from the date on which this judgment became final].
...
The decision to adjourn the above cases [would] be taken without prejudice to the Court's power at any moment to declare inadmissible any such case or to strike it out of its list following a friendly settlement between the parties or the resolution of the matter by other means in accordance with Articles 37 or 39 of the Convention.”
Having examined the terms of the Government's declaration, the Court understands it as intending to give the applicants redress in line with the pilot judgment (ibid., § 99 and point 6 of the operative part).
The Court is satisfied that the lengthy non-enforcement of the judgments in the applicants' favour is explicitly acknowledged by the Government. It also notes that the compensations offered are comparable with its awards in similar cases taking account, inter alia, of the specific delay(s) in each particular case.
The Court therefore considers that it is no longer justified to continue the examination of this part of the applications. It is also satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the applications.
Accordingly, this part of the applications should be struck out of the list.
B. Remainder of the complaints
Having carefully examined the remainder of the applicants' complaints in the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Takes note of the terms of the respondent Government's declaration in respect of the lengthy non-enforcement of the judgments in the applicants' favour, as amended;
Decides to strike the applications out of its list of cases in so far as they relate to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the applications inadmissible.
Stephen PhillipsRait Maruste
Deputy RegistrarPresident
ANNEX
#
Appl.
Number
Name(s) of the applicant(s), born in
Date of introduction
Domestic decisions about the lengthy non-enforcement of which the applicants complain (name of the court, date of the decision)
Compensation offered (euro)
34901/04
DUMNYCH YURIY VASYLYOVYCH (1947)
19 September 2004
19 February 2003, Zaliznychnyy District Court of Lviv
345
21720/05
MATVYEYENKO OLEKSANDR VASYLYOVYCH (1959)
25 May 2005
14 September 1999, Oktyabrskyy District Court of Poltava
16 August 2002, Leninskyy District Court of Poltava
1,095
24152/05
BELOKUR NIKOLAY IVANOVICH (1945)
22 June 2005
1 November 2000, Krasnyy Luch Town Court
900
2224/06
PETUKHOVA VALENTINA PETROVNA (1950)
20 December 2005
21 July 2005, Krasnyy Luch Town Court
750
25000/06
MUKHIN ALEKSEY STEPANOVICH (1953)
24 June 2005
26 December 2003, Kirovograd District Court
706
6694/07
YERMAKOV VASILIY ALEKSANDROVICH (1932)
16 January 2007
11 November 1999, Shakhtarsk Town Court
1,425
7769/07
LYSYUK LARYSA PAVLIVNA (1966)
8 February 2007
6 December 2004, Oleksandriya District Court
990
8820/07
DEMESHKO MYKOLA FILIMONOVYCH (1961)
2 February 2007
6 December 2004, Oleksandriya District Court
990
9353/07
MIROSHNICHENKO NATALIYA ANATOLIYIVNA (1972)
15 February 2007
26 November 2004, Oleksandriya District Court
1,005
20078/07
KORYAKINA RAYISA VASYLIVNA (1954)
23 April 2007
13 April 2004, Avtozavodskyy District Court of Kremenchuk
780
24722/07
LUTSENKO VIKTORIYA MYKOLAYIVNA (1964)
5 June 2007
23 November 2004, Oleksandriya District Court
1,005
25972/07
PAVLENKO OLES IVANOVYCH (1934)
15 May 2007
13 December 2005, Kirovograd Regional Court of Appeal
435
45595/07
BAZIKALOVA ANNA IVANOVNA (1953)
25 September 2007
4 October 2004, Leninskyy District Court of Lugansk
720
11549/08
KLIMUK MYKOLA MYKOLAYOVYCH (1959)
10 February 2008
2 November 2004, Lutsk District Court
1,005
4107/09
DIMITRASHCHUK MIKHAIL GRIGORYEVICH (1951)
6 January 2009
24 May 2001, Zaliznychny District Court of Simferopol
3 December 2002, Zaliznychny District Court of Simferopol
1,560
55850/09
TOV SHULYAVKA
12 October 2009
4 February 2008, Kyiv City Commercial Court
435
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